Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 165 (CAL)

Shyamal Nandi v. Debendra Nath Maity

2015-02-23

ARIJIT BANERJEE

body2015
JUDGMENT : Arijit Banerjee, J. The petitioners before this Court are the plaintiffs in Title Suit No. 12 of 2007 pending in the Court of the Civil Judge (Junior Division), Second Court, Arambagh. The suit is for declaration of title in respect of a passage between the plaintiffs' property and the defendants' property and for injunction. Plot no. 918 admittedly belongs to the plaintiffs and the Plot No. 919 admittedly belongs to the defendants. The plaintiffs claimed that the defendants are wrongfully interfering with the possession of the plaintiffs in respect of 4 ft. broad and 35 ft. long passage between the two plots. 2. In the above suit, the defendants filed an application claiming right of way in respect of the said passage. The defendants alleged that the plaintiffs have blocked the said passage by putting up an iron gate and have thereby denied the defendants' access to their property which can be had only through the common passage. 3. The learned Trial Court appointed an Advocate Commissioner for local inspection who submitted his report dated 26th June, 2007. Having considered the facts and circumstances of the case by a detailed reasoned order the learned Trial Judge by an order dated 6th August, 2007 directed the plaintiffs to remove all the obstructions over the disputed passage to make the passage accessible to the parties to the suit and thereafter to maintain status quo with regard to the suit property till disposal of the suit. 4. Being aggrieved the plaintiffs preferred an appeal being Miscellaneous Appeal No. 8 of 2007 before the Additional District Judge, Arambagh. The learned First Appellate Court, by judgment and order dated 30th November, 2007 dismissed the appeal on contest. The learned First Appellate Court held that the existence of pathway on the eastern wall of the northern room of the building of the defendants as appearing from the sketch map and the report of the Advocate Commissioner clearly indicates that the passage was also used by the defendants for their ingress and egress to the said northern room. At the time of hearing, the learned Advocate for the appellants could not show any alternative way of the defendants for egress and ingress to the said northern room of the defendants. 5. Being aggrieved by the First Appellate Court's order, the plaintiffs are before this Court by way of the instant revisional application. 6. At the time of hearing, the learned Advocate for the appellants could not show any alternative way of the defendants for egress and ingress to the said northern room of the defendants. 5. Being aggrieved by the First Appellate Court's order, the plaintiffs are before this Court by way of the instant revisional application. 6. Learned Counsel appearing for the petitioners submitted that the defendants' application for temporary mandatory injunction could not be allowed in a suit filed by the plaintiffs. Learned Counsel drew the Court's attention to Order 39, Rule (1) of the Civil Procedure Code and submitted that the defendants' prayer was beyond the scope of the said provision. He submitted that if the impugned order is not interfered with, the suit of the plaintiffs would become infructuous. The Courts below have prejudged the issue whether or not the iron gate put up by the plaintiffs was authorised or legal. He prayed for quashing of the order of the First Appellate Court. 7. Learned Counsel appearing on behalf of the opposite parties submitted that the Trial Court and the First Appellate Court have prima facie come to a concurrent finding of fact. The Trial Court in exercise of its discretion has passed an order which the First Appellate Court has upheld. It cannot be said that such order is beyond the jurisdiction of the Court, which passed it. Hence this Court in exercise of its supervisory corrective jurisdiction should not interfere with the order impugned. In this connection learned Counsel relied on the case of Radhey Shyam and Another v. Chhabi Nath and Ors. reported in 2009(5) S.C.C. 616 , wherein at paragraph 31 of the judgment the Supreme Court observed as follows:- "31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law." 8. Learned Counsel also relied on a decision of the Hon'ble Supreme Court in the case of Seema Arshad Zaheer and Ors. Such power, however, is not to be exercised to correct a mistake of fact and of law." 8. Learned Counsel also relied on a decision of the Hon'ble Supreme Court in the case of Seema Arshad Zaheer and Ors. v. Municipal Corporation of Greater Mumbai and Ors. reported in 2006(5) S.C.C. 282 , in support of his submission that unauthorized constructions may be directed to be demolished even at an interlocutory stage. He also relied on a decision of this Court in the case of Loken Bose v. Sm. Ashima Dey and Anr. reported in 1997(2) C.L.J. 69, in support of his contention that the defendant can maintain an application for temporary mandatory injunction in the plaintiffs' suit in certain facts and circumstances. 9. I have considered the rival contentions of the parties. I have no doubt in my mind that in an appropriate case the defendant can maintain an application for injunction, prohibitory or mandatory, in the suit filed by the plaintiff. Such injunction may be passed by the Court either under Order 39, Rule 1 of the Civil Procedure Code or if the said provision does not strictly apply, then under Section 151 of the Civil Procedure Code if the same is warranted for the ends of justice. 10. Hence, I am unable to accept the contention of the learned Counsel for the petitioners that the defendants' application in the plaintiffs' suit was not maintainable. 11. I have perused the orders of the Trial Court and the First Appellate Court. They have both come to the same findings and on the face of it I do not find any such error so as to interfere with them. This Court is not a Court of appeal and every error of fact or law cannot be corrected in the exercise of jurisdiction under Article 227 of the Constitution of India. The power and duty of the High Court under Article 227 of the Constitution of India is essentially to ensure that the Courts and Tribunals, inferior to the High Court, have done what they are required to do. The power and duty of the High Court under Article 227 of the Constitution of India is essentially to ensure that the Courts and Tribunals, inferior to the High Court, have done what they are required to do. Law is well settled that the High Court can interfere under Article 227 of the Constitution of India in cases of erroneous assumption of or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure arriving at a finding which is perverse or based on no material or resulting in manifest injustice. As regards finding of fact of the inferior Court the High Court should not quash the order of the subordinate Court merely on the ground that the finding of fact was erroneous. 12. In the present case I do not find any glaring error on the face of the order impugned. It cannot be said that the learned Appellate Court has transgressed its jurisdiction in passing the order impugned. Nor irreparable prejudice has been caused to the plaintiffs by the order impugned. If the plaintiffs succeed in the suit, ultimately, they can reconstruct the iron gate and have exclusive possession of and access to the said passage if they can prove that they are the sole and exclusive owners of such passage. 13. For the reasons aforesaid, I am not inclined to interfere with the order impugned. This application fails and is dismissed.